This
case involves the proper construction of Article 38.23(b) of
the Texas Code of Criminal Procedure, the statutory
good-faith exception to our statutory exclusionary rule. Tex.
Code Crim. Proc. art. 38.23(b). We have reviewed this case
once before on discretionary review. McClintock v.
State, 444 S.W.3d 15 (Tex. Crim. App. 2014). At that
time, we remanded it to the court of appeals to allow that
court to address, in the first instance, whether the United
States Supreme Court's recent interpretation of the
court-made good-faith exception to the federal exclusionary
rule in Davis v. United States, 564 U.S. 229 (2011),
should have any application in the construction of our own
statutory good-faith exception to our statutory exclusionary
rule. We observed that a remand was "the proper
disposition" of our first discretionary review because
the answer was "not remotely clear cut" and
"our resolution of the issue . . . would benefit from a
carefully wrought decision from the court of appeals."
444 S.W.3d at 20-21. The court of appeals has now issued its
opinion. McClintock v. State, 480 S.W.3d 734 (Tex.
App.-Houston [1st Dist.] 2015). The State again petitioned
this court for discretionary review, which we granted.

BACKGROUND

We gave
a detailed recital of the facts in our first opinion in this
case. McClintock, 444 S.W.3d at 16-17. We need not
repeat them to that level of specificity here. Suffice it to
say that Appellant lived in an upstairs residence above a
business. Access to his residence could be gained through a
stairway at the back of the building. Police took a
drug-sniffing dog to Appellant's door at the top of that
stairway, where the dog alerted to the presence of drugs.
This fact was included in a warrant affidavit upon which a
warrant to search the residence issued. Charged with
possession of a felony amount of marijuana, Appellant filed a
motion to suppress the contraband, contending that it had
been obtained under a search warrant that was not supported
by probable cause. He claimed that the affidavit in support
of the search warrant contained illegally obtained
information, and that, redacting that information from the
warrant affidavit, the remaining information failed to supply
probable cause. Specifically, he argued that the police had
conducted an illegal search at the door to his apartment
using a drug-sniffing dog, and then incorporated that
ill-gotten information into the search warrant affidavit. The
trial court denied the motion, expressly holding that the
police dog had not invaded the curtilage of Appellant's
home at the time it alerted to the presence of contraband,
and that the use of a drug dog therefore did not constitute a
search for Fourth Amendment purposes. Appellant then pled
guilty to a reduced charge, preserving his right to appeal
the adverse ruling on his motion to suppress.

While
the case was pending on appeal, the United States Supreme
Court decided Florida v. Jardines, 133 S.Ct. 1409
(2013). On the strength of that opinion, the court of appeals
reversed Appellant's conviction, holding that the canine
drug sniff had in fact constituted an unconstitutional search
of the curtilage of Appellant's residence, [1] and that,
excluding the dog's contraband alert from the search
warrant affidavit, there was no probable cause to support the
warrant. McClintock v. State, 405 S.W.3d 277 (Tex.
App.-Houston [1st Dist.] 2013). The State filed a petition
for discretionary review. For the first time, the State
argued that, even accepting that the dog sniff was illegal
under Jardines, the court of appeals erred to hold
that the trial court should have excluded the product of the
search warrant. Invoking the Supreme Court's opinion in
Davis, the State argued that, because the police
relied upon then-binding legal precedent holding that the dog
sniff did not constitute a search for Fourth
Amendment purposes, they committed no malfeasance and should
not have to suffer the exclusion of evidence under either the
Fourth Amendment exclusionary rule or the statutory
exclusionary rule embodied in Article 38.23(a) of the Texas
Code of Criminal Procedure.[2] We remanded the cause to the
court of appeals to address this contention in the first
instance. McClintock v. State, 444 S.W.3d 15, 20-21
(Tex. Crim. App. 2014).

On
remand, the justices in the court of appeals disputed the
proper scope of Article 38.23(b)'s good-faith exception
to our statutory exclusionary rule.[3] The majority held that the
language of the exception plainly limits its application to
"evidence obtained" by virtue of "reliance
upon" a "warrant" that is "based on
probable cause." McClintock, 480 S.W.3d at
742-44. It observed that the warrant upon which police relied
in this case was not supported by probable cause
because the affidavit undergirding the warrant contained
information that itself was tainted by an
illegality. Id. On its face, the majority explained,
Article 38.23(b) does not apply to excuse this underlying
illegality, and so, the illegally obtained information may
not be included in the probable cause calculation.
Id. The majority went on to say that, excluding that
illegally obtained information from the warrant affidavit,
insufficient "probable cause" remained to support
the warrant. Id. Therefore, the majority concluded,
the good-faith exception embodied in Subsection (b) did not
apply, exclusion of the contraband was appropriate under
Subsection (a), and the trial court erred in failing to
suppress the evidence. Id.

The
dissenting justice disagreed. Id. at 744-54 (Keyes,
J., dissenting). She believed it would be just as faithful to
the language of the statutory exception to hold that, so long
as the illegal conduct that infected the acquisition of the
information that went into the warrant affidavit was
itself undertaken in good faith, then the evidence
was "obtained . . . in good faith reliance upon a
warrant . . . based on probable cause[, ]" and evidence
obtained pursuant to the warrant need not be excluded.
Id. That is to say, so long as the police had a
good-faith basis to believe, under binding legal precedent at
the time, that they had lawfully obtained the information
included in the warrant affidavit, then the exclusionary
provisions of Article 38.23(a) should not apply. Id.
Such an interpretation, Justice Keyes believed, would bring
the statutory exception in line with the Supreme Court's
gloss on the federal exclusionary rule announced in
Davis. Id.

We
granted the State's second petition for discretionary
review in order to resolve this dispute and clarify the reach
of Article 38.23(b). Boiled down, the question is this: How
should Article 38.23(b) apply, if at all, when the warrant
affidavit supplies probable cause but that probable cause
appears to be tainted by a prior illegality?

ANALYSIS

Statutory
Construction

Prior
to the advent of Article 38.23, this Court had recognized no
state exclusionary remedy in Texas. Welchek v.
State, 93 Tex. Crim. 271, 247 S.W. 524 (1922). We still
have not fashioned a judicial exclusionary rule. The scope of
the current state exclusionary rule is, therefore, purely a
function of our construction of the statute. While Article
38.23 to some extent "mirrors" the federal
exclusionary rule, Miles v. State, 241 S.W.3d 28, 32
(Tex. Crim. App. 2007), they are not identical, and we are
not free to graft additions or alterations to the statute at
our pleasure, in the name of policy, that are plainly
inconsistent with the text. The proper scope of Article
38.23(a)'s exclusionary rule is a question of statutory
construction. State v. Daugherty, 931 S.W.2d 268,
270 (Tex. Crim. App. 1996); Wehrenberg v. State, 416
S.W.3d 458, 468-70 (Tex. Crim. App. 2013). The proper scope
of any exception to the exclusionary rule, such as
Article 38.23(b)'s good-faith exception, is likewise a
question of statutory construction. See Baker v.
State, 956 S.W.2d 19, 23 (Tex. Crim. App. 1997)
("[W]hether a recognized exception to a federal
exclusionary rule also applies to Article 38.23 depends upon
whether the exception is consistent with the language of
Article 38.23.").

The
Supreme Court's decision in Davis dealt with the
good-faith exception to the federal, court-made exclusionary
rule. The question in Davis was whether to apply the
federal exclusionary rule "when police conduct a search
in compliance with binding precedent that is later
overruled." 564 U.S. at 232. The Supreme Court concluded
that "[e]vidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to
the exclusionary rule." Id. at 241. Nothing
about Davis's holding with respect to the
federal exclusionary rule necessarily dictates how Article
38.23(b) should be construed. Whether Article 38.23(b)'s
good-faith exception should apply to the facts of the instant
case is purely a question of legislative intent.
Consequently, we must decide whether, when the Legislature
provided that the good-faith exception should apply only to
excuse the illegal acquisition of evidence when the evidence
was obtained in reliance upon a warrant "based upon
probable cause[, ]" it intended that any information
contributing to that probable cause that was itself
obtained by police misconduct should be discounted from the
probable cause assessment.

When we
construe Article 38.23, as with any statute, "[i]n
divining legislative intent, we look first to the language of
the statute[, ]" and "[w]hen the meaning is plain,
we look no further." Daugherty, 931 S.W.2d at
270. It is plain enough from the language of Article 38.23(b)
that, before its good-faith exception to Subsection (a)'s
exclusionary rule may apply, there must be (1) objective
good-faith reliance upon (2) a warrant (3) issued by a
neutral magistrate that is (4) based upon probable cause.
With respect to the fourth requirement, we long ago declared
that "[t]he plain wording of Art[icle] 38.23(b) requires
an initial determination of probable cause." Curry
v. State, 808 S.W.2d 481, 482 (Tex. Crim. App. 1991)
(citing Gordon v. State, 801 S.W.2d 899, 912-13
(Tex. Crim. App. 1990)); see also George E. Dix
& John M. Schmolesky, 40 Texas Practice: Criminal
Practice and Procedure § 7.67, at 395 (3d ed. 2011)
("If probable cause is found to be lacking, Article
38.23-although not federal constitutional
considerations-requires that the evidence be excluded
regardless of whether the officer relying on the warrant
believed that it had been issued on facts sufficient for
probable cause.").[4]

Far
less plain from the face of the statute is what the
legislative intent may have been with respect to what may
permissibly go into the assessment of "probable
cause."[5] Did the Legislature mean to incorporate
nothing more than the common-place definition of that term,
namely, that "under the totality of circumstances
presented to the magistrate, there is at least a 'fair
probability' or 'substantial chance' that
contraband or evidence of a crime will be found at the
specified location"? Flores v. State, 319
S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Illinois
v. Gates, 462 U.S. 213 (1983)). There is no question
that the totality of circumstances presented to the
magistrate in this case, including the results of
the canine drug sniff, supplied ample probable cause.
Alternatively, did the Legislature's understanding of
"probable cause" embrace-as the majority in the
court of appeals in this case tacitly assumed-the Fourth
Amendment's "fruit of the poisonous tree"
doctrine to the effect that illegally obtained information
must ordinarily be disregarded in determining whether a
warrant affidavit has supplied sufficient information to
satisfy this common-place definition of probable
cause?[6] In deciding whether a warrant is
"based on probable cause" for purposes of
implementing Article 38.23(b), is it necessary for a court
that is reviewing the magistrate's determination
categorically to strike any information in the
warrant affidavit that was itself illegally obtained? Does it
matter whether the prior illegality was itself subject to a
claim that the officer acted in good faith? The federal
courts have disagreed about the proper resolution of this
issue as a matter of Fourth Amendment
jurisprudence.[7] Article 38.23(b) does not expressly
address, much less plainly resolve, this complicated
question.

How do
we fill the statutory gap? Our approach in the past, at least
when confronting the language of Article 38.23(a), has been
to assume that the Legislature intended to incorporate any
exception to the federal exclusionary rule from the Fourth
Amendment case law that we have found to be "consistent
with" the statutory language, even if not expressly
spelled out there. Baker, 956 S.W.2d at 23. Thus, we
have declared the Fourth Amendment doctrines of
"attenuation of taint" and "independent
source" to apply under Article 38.23(a), because we
found them to be consistent with the notion that evidence
that fits within either of these doctrines was not
"obtained" illegally, as the statute requires as a
predicate to exclusion. Johnson v. State, 871 S.W.2d
744, 750-51 (Tex. Crim. App. 1994); Wehrenberg, 416
S.W.3d at 473. By contrast, we found the doctrine of
inevitable discovery not to be consistent with the statutory
language of Article 38.23(a), because that doctrine
assumes that evidence has been "obtained"
illegally, and would admit it anyway. Daugherty, 931
S.W.2d at 271. In examining the scope of Article
38.23(b)'s good-faith exception to Article 38.23(a)'s
exclusionary rule, therefore, we should similarly inquire
whether such principles as have been recognized in the case
law construing the scope of the "good-faith"
exception to the federal exclusionary rule are accommodated
by the statutory language.

The
Good Faith Doctrine and Fruit of the Poisonous Tree

The
United States Supreme Court has already provided clear
guidance when it comes to exclusionary-rule issues such as
attenuation of taint, [8] independent source, [9] and inevitable
discovery.[10] It is a relatively straightforward task
for this Court to decide whether Article 38.23 can
accommodate those doctrines as definitively articulated by
the Supreme Court. But the Supreme Court has yet to address
the question of how the fruit-of-the-poisonous-tree doctrine
should interact with the good-faith exception established by
United States v. Leon, 468 U.S. 897
(1984).[11] The lower federal courts are not
entirely of one mind on this question, and it is a challenge
to discern exactly what the state of the law is under the
federal exclusionary rule.

The
Ninth, Tenth, and Eleventh Circuits have taken a hard line.
They seem to have held that Leon's good-faith
exception should not apply at all to permit the admissibility
of evidence obtained pursuant to a search warrant if the
information proffered to the magistrate to supply probable
cause was itself obtained, and hence tainted, by some prior
illegality.[12] On the other hand, the Second Circuit
has ventured to the opposite extreme as the Ninth, Tenth, and
Eleventh Circuits, seeming to hold that a prior illegality
will always be excused so long as a neutral magistrate
ultimately determines there is probable cause.[13] These cases
were decided relatively early, however, and it remains to be
seen whether these circuits will eventually moderate their
views in light of the attitude other circuits have since
taken that seem to have carved out various middle grounds.

In a
progression of opinions, the Eighth Circuit has held that the
good-faith exception may apply to allow admissibility of
evidence deriving from a search warrant that was tainted by a
prior illegality-but only if the prior illegality was itself
the product of a good-faith mistake on the part of the
police, such that the deterrent purpose of the Fourth
Amendment exclusionary rule would not efficaciously be
served.[14] The First Circuit has held similarly,
also noting that the circumstances of the prior illegality
were set forth in the warrant affidavit so that the
magistrate could judge the legality of the prior warrantless
search.[15]

More
recently, the Sixth and Fifth Circuits have weighed in. The
Sixth Circuit for the first time explicitly framed the issue
as one of how to "reconcile the 'good faith'
exception established in Leon . . . with the
'fruit of the poisonous tree' doctrine[.]"
United States v. McClain, 444 F.3d 556, 564 (6th
Cir. 2005). In McClain, police conducted an illegal
protective sweep of a residence, unduly believing that a
possible burglary was in progress. A different officer
subsequently sought a search warrant for the house,
suspecting a marijuana growing enterprise based on
information obtained during the illegal sweep. Id.
at 560. The Sixth Circuit affirmed the district court's
judgment that the initial entry and search were illegal.
Id. at 564. It turned next to the question of
whether that taint should render the second officer's
reliance on the magistrate's issuance of the warrant to
be beyond the scope of the good-faith exception. Id.
It concluded that "this is one of the unique cases in
which the Leon good-faith exception should apply
despite an earlier Fourth Amendment violation."
Id. at 565. Like the Eighth Circuit in
White, the Sixth Circuit found that "the facts
surrounding the initial Fourth Amendment violation were
'close enough to the line of validity to make the
officer's belief in the validity of the warrant
objectively reasonable." Id. at 566 (quoting
White, 890 F.2d at 1419). Three other facts also
contributed to the court's conclusion. First, there was
no indication that the officers were consciously violating
the Fourth Amendment when they conducted the illegal sweep of
the house, since there had been at least some basis in fact
to suggest a burglary might be afoot. Id. Second and
third, and "[m]ore importantly, the officers who sought
and executed the search warrants were not the same officers
who performed the initial warrantless search, and [the]
warrant affidavit fully disclosed to a neutral and detached
magistrate the circumstances surrounding initial warrantless
search." Id. All of these circumstances
combined to convince the Sixth Circuit that "the
Leon exception bars application of the exclusionary
rule in this case." Id.

After
canvassing the preceding case law, and drawing heavily on
McCain, the Fifth Circuit recently distilled the
interplay between the Leon good-faith doctrine and
the fruit-of-the-poisonous-tree doctrine in this way:

We adopt the following reasoning . . . as our understanding
of the interaction of the doctrine of fruit of the poisonous
tree with Leon's good faith exception, as each
appl[ies] to evidence obtained as the result of the execution
of a search warrant. Two separate requirements must be met
for evidence to be admissible: (1) the prior law enforcement
conduct that uncovered evidence used in the affidavit for the
warrant must be 'close enough to the line of
validity' that an objectively reasonable officer
preparing the affidavit or executing the warrant would
believe that the information supporting the warranted was not
tainted by ...

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